Agency.

Equal Employment Opportunity CommissionApr 6, 2006
02a60007 (E.E.O.C. Apr. 6, 2006)

02a60007

04-06-2006

Agency.


Aurel Jon Wisnieski v. FDIC

02A60007

April 6, 2006

.

Aurel Jon Wisnieski

Grievant,

v.

Martin J. Gruenberg,

Acting Chairman,

Federal Deposit Insurance Corporation,

Agency.

Appeal No. 02A60007

Grievance No. FMCS No. 04-50029

DECISION

The grievant timely initiated an appeal from an Arbitrator's decision

concerning his grievance alleging unlawful employment discrimination in

violation of the Age Discrimination in Employment Act of 1967 (ADEA),

as amended, 29 U.S.C. � 621 et seq. The appeal is accepted pursuant

to 29 C.F.R. � 1614.401(d) and .405. For the following reasons, the

Commission affirms the findings of the Arbitrator.

The grievant was employed as a Grade 15 Senior Information Specialist

in the Division of Insurance and Research (DIR). The record reflects

that the union and the agency negotiated a Compensation Agreement

for a Corporate Success Award (CSA) program for the years 2003-2005.

The agreement reflects that the CSA was designed to recognize an

employee's individual initiative, exceptional effort and/or achievements

reflecting important contributions to the agency. During 2003,

the FDIC Chairman decided, pursuant to the agreement with the union,

that one-third of the recipients of the award would be bargaining unit

employees. When grievant did not receive an award in 2003, he filed a

grievance regarding his non-selection for an award. The matter went to

arbitration and a hearing was held where grievant raised claims of age

discrimination. Thereafter, the Arbitrator issued a decision finding

there was no discrimination and denying the grievance. Specifically,

the Arbitrator found the distribution process used by the agency to be

�fair and equitable.� The Arbitrator noted the grade disparity between

grievant and the employees he was comparing himself to, and found no

discrimination in the agency's decision not to give grievant an award.

With respect to grievant's individual disparate treatment claim, although

the initial inquiry in a discrimination case usually focuses on whether

the grievant has established a prima facie case, following this order

of analysis is unnecessary when the agency has articulated a legitimate,

nondiscriminatory reason for its actions. See Washington v. Department

of the Navy, EEOC Petition No. 03900056 (May 31, 1990). In such cases,

the inquiry shifts from whether the grievant has established a prima

facie case to whether she has demonstrated by a preponderance of the

evidence that the agency's reasons for its actions merely were a pretext

for discrimination. Id.; see also United States Postal Service Board

of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).

The Commission notes that grievant compared himself to employees who were

not similarly situated to himself � they were in different positions and

at different pay levels. As such he cannot establish a prima facie case

of age discrimination. However, even assuming he established a prima

facie case of discrimination, the agency explained that the grievant

was not selected for a CSA because, although his work was good, his

contributions to the agency did not justify an award. It is noted that

while grievant's supervisor did nominate him for the award, he submitted

his nominees in ranked order and grievant was ranked third of three.

As only one-third of the recipients of the awards were to be bargaining

unit employees, grievant did not make the cut-off to receive an award.

Grievant did not produce evidence to establish that his work was plainly

superior to those who did receive awards. Moreover, to the extent that

grievant attempted to use statistical evidence to prove pretext, the

Commission finds that the generalized statistics presented, without more,

were insufficient to rebut the agency's articulated non-discriminatory

reason for not selecting this particular grievant for the award.

Therefore, complainant has not shown, by a preponderance of evidence,

that the agency's articulated reasons for the decisions made were a

pretext for discrimination.

The Commission notes that grievant, at least on appeal, also attempted to

raise a claim of disparate impact. In general, to establish a prima facie

case of disparate impact, grievant must show that an agency practice or

policy, while neutral on its face, disproportionately impacted members

of the protected class. This is demonstrated through the presentation

of statistical evidence that establishes a statistical disparity that

is linked to the challenged practice or policy. Watson v. Fort Worth

Bank and Trust, 487 U.S. 977, 994 (1988) (complainant must present

�statistical evidence of a kind and degree sufficient to show that the

practice in question has caused the exclusion�). Specifically, grievant

must: (1) identify the specific practice or practices challenged; (2)

show statistical disparities; and (3) show that the disparity is linked

to the challenged practice or policy. Id. The burden is on grievant

to show that �the facially neutral standard in question affects those

individuals [within the protected group] in a significantly discriminatory

pattern.� Dothard v. Rawlinson, 433 U.S. 321, 329 (1977); see also Gaines

v. Department of the Navy, EEOC Petition No. 03990119 (August 31, 2000).

After careful consideration of the entire record, the Commission

finds that grievant, who carries the initial burden of proof, has

failed to provide sufficient evidence to establish a prima facie

case of disparate impact in this matter. The statistics provided

by grievant were generalized, vague and insufficient to show that an

identified practice of the agency caused the exclusion of members of

his protected class. Basically, the grievant argued that �47 percent

of DIR bargaining unit employees under the age of forty received a CSA

while only 27 percent of bargaining unit employees over the age of

forty received a CSA.� Appellant's Brief in Support of His Appeal,

p. 2. Grievant, however, did not identify the particular aspect(s)

of the CSA program allegedly responsible for any observed statistical

disparity as required in the first and third steps of the prima facie

case of disparate impact. Simply identifying the CSA program, without

more specificity, does not meet grievant's prima facie burden. Moreover,

the gross statistics offered by grievant are too broad to draw appropriate

statistical conclusions that there was a relevant statistical disparity

in this case. Grievant's disparate impact case rests almost exclusively

on one statistical chart (Union Exhibit 4) submitted by the union,

with limited testimony explaining the chart. However, the proffered

chart fails to provide adequate evidence of a statistical disparity.

For example, the chart presented does not show what percentage of those

bargaining unit employees who did not receive a CSA were even eligible

for the award.<1> It is also noted that the chart provides statistics

only for bargaining unit employees, while two-thirds of the recipients

of CSAs were non-bargaining unit employees. Information about these

employees may be necessary to draw any statistically valid conclusions

about age being a factor in the awards process.

Therefore, after a careful review of the record, including grievant's

contentions on appeal, the agency's response, and arguments and evidence

not specifically addressed in this decision, we affirm the Arbitrator's

decision finding no discrimination in this matter.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

The Commission may, in its discretion, reconsider the decision in this

case if the grievant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. The appellate decision involved a clearly erroneous interpretation

of material fact or law; or

2. The appellate decision will have a substantial impact on the policies,

practices, or operations of the agency.

Requests to reconsider, with supporting statement or brief, must be filed

with the Office of Federal Operations (OFO) within thirty (30) calendar

days of receipt of this decision or within twenty (20) calendar days of

receipt of another party's timely request for reconsideration. See 29

C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for

29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests

and arguments must be submitted to the Director, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. In the absence of a legible postmark, the

request to reconsider shall be deemed timely filed if it is received by

mail within five days of the expiration of the applicable filing period.

See 29 C.F.R. � 1614.604. The request or opposition must also include

proof of service on the other party.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely, unless extenuating circumstances

prevented the timely filing of the request. Any supporting documentation

must be submitted with your request for reconsideration. The Commission

will consider requests for reconsideration filed after the deadline only

in very limited circumstances. See 29 C.F.R. � 1614.604(c).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)

You have the right to file a civil action in an appropriate United States

District Court within ninety (90) calendar days from the date that you

receive this decision. If you file a civil action, you must name as

the defendant in the complaint the person who is the official agency head

or department head, identifying that person by his or her full name and

official title. Failure to do so may result in the dismissal of your

case in court. "Agency" or "department" means the national organization,

and not the local office, facility or department in which you work. If you

file a request to reconsider and also file a civil action, filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1199)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request that the Court appoint

an attorney to represent you and that the Court permit you to file the

action without payment of fees, costs, or other security. See Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;

the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).

The grant or denial of the request is within the sole discretion of

the Court. Filing a request for an attorney does not extend your time

in which to file a civil action. Both the request and the civil action

must be filed within the time limits as stated in the paragraph above

("Right to File A Civil Action").

FOR THE COMMISSION:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

April 6, 2006

__________________

Date

1 The program required employees to have received at least a �Meets

Expectations� rating on their performance appraisal to be eligible for

a CSA.